This piece by Mike Cox (Michigan AG) (warning, Wall Street Journal) covers the way “the people” is used in the 2nd vs the other ammendments.
Heh. Reading his empirical analysis reminds me why law schools should be required to teach statistics.
Here’s a little fun using Cox’s numbers:
In the six years before the ban, the murder rate stayed somewhat constant, with spiked increases of up to 31% from the 1970 rate in any given year, but with overall rate having changed less than 10% since 1970. In ten years following 1976, the murder rate never reached the highs it saw in 1971, 1973, or 1974. In some years after the ban, the rate was lower than the city had seen since the 60’s. Additionally, these numbers make clear that handguns have no deterrent effect. There were more burglaries and vehicle thefts in 1974 than the years following the gun ban. Indeed, in 2005, there were fewer burglaries than any time since 1960. (http://www.disastercenter.com/crime/dccrime.htm)
(Note: I’m not making the above argument, I’m simply demonstrating that correlation without analysis of causation is pretty meaningless. For all we know, the gun ban held down an increase in murder because of demographic factors.)
Uh, that question was specifically for JohnMace in response to his suggestion that it be left to the states to take care of. I’d still like to hear his answer, because I would be surprised, based on his previous writings, if that wouldn’t bother him.
If you’re asking me, it would bother me if any state passed a law that violated the Bill of Rights. It wouldn’t bother me for long, though, because the law would not stand. Personally, I do not find this analagous to the instant situation, because in my opinion, the 2nd amendment does not guarantee the right to personally own a gun to be used for the purpose of hunting, personal self-defense, or the like. If any state passes a gun control law dealing with personal use and ownership, I do not consider that an impingement on any Constitutional freedom.
ISTM that the Tenth refers to the federal government only to distinguish it from the “states, or the people”.
IOW, the feds can do X if and only if the Constitution says they can do X. The states may not do X if and only if the Constitution says they cannot do X.
Everything else is up to the states or the people.
Notice also the distinction drawn between “the United States” and “the people”. Thus the reference in the Second Amendment cannot mean “the United States” when it refers to the right of “the people to keep and bear arms”. It means “the free citizens of the United States”.
And Polycarp, is this what you were asking
Because I am not sure if I can make it any clearer.
The line of reasoning is[ul][li]Recognizing new rights is a power.[]The power of recognizing new rights is not delegated to the United States[]The power of recognizing new rights is not forbidden to the states (providing they do not violate any of the Bill of Rights, which the Fourteenth says they can’t do). [*]Ergo, the power of recognizing new rights is reserved to the states respectively, or the people. [/ul]So a state could recognize a right for the citizens of that state (not the whole US), by state-wide referendum, legislative action, or amending the state constitution. For new rights to be recognized nationally, “the people” have to amend the Constitution, or pass legislation, or have a national referendum. [/li]
But the federal government may not recognize new rights on its own - the Constitution does not say they can, therefore they cannot. The feds can’t do anything that the Constitution does not say they can. And I don’t recognize penumbrae and emanations and such-like - that’s a power grab by the feds.
Is this clear? I don’t want to get bogged down in discussions on whether we are recognizing previously undefined rights vs. creating new ones - I think that is a red herring.
Bottom line is, if the Constitution does not say the feds can do it, they can’t do it, and that’s the end of it. If the people want the feds to be able to do it, they have to amend the Constitution (or do the other things I mentioned).
But I am a paleo-conservative - I believe in limited government.
Regards,
Shodan
I was linking the article for the first 12 paragraphs dealing with the wording of the Constitution, not the last 3 dealing with his crime analysis.
Indeed, does that mean I can’t comment on the parts you didn’t intend to highlight?
In any case, I think the empirical analysis he did clearly undermines his constitutional analysis, since he was willing to let it be so infected with bias.
With …“the U.S. Constitution or their own constitutions…” in the last sentence, I’d ratify that.
I think this is an important poin.
Yes, that’s pretty clear. But I disagree that it’s a red herring. If they are pre-existing rights recognized for the first time in response to a case which happens to challenge them (if you asked Abe Lincoln if people had a right to get married [subject to certain restrictions], he’d have said yeah – but the question didn’t come up to be resolved as settled law until 1967) – if they are in fact rights which were there all along, then the various clauses we’ve talked about, notably Amerndment IX, provide ground for the Feds. to recognize them. On the other hand, if they are newly created rights, as you seem to be presuming, your argument has some validity.
But that’s presuming that a “power to recognize new rights” exists and is being employed – and that it’s not a valid function of the Feds. And I’d have to diagree. Article III, Section 2 of the Constitution empowers the Supreme Court and such lower courts as Congress ordains and establishes , to rule on “all Cases… arising under this Constitution.” To me, it’s quite clear that a controversy over whether or not a given right is guaranteed by the Constitution, when taken to court, is definitely a “case…arising under this Constitution.”
Further, all the literalists need to pay close attention to what they’re saying. First, there is no longer any such thing as a legal membership qualification for any group in America. Because that’s guaranteed by the “right of free association” – which is an emanation or penumbra. That is, unless you want to consider a logical inference from that which is guaranteed to likewise be guaranteed. My earlier example, that a policeman can hang out in your bedroom, shower, wherever, ust waiting for you to break a law, so long as he does not engage in an “illegal search or seizure.” Because, you see, you have no right to expect privacy if the almighty government takes an interest in your affairs. The FF forgot to guarantee any such right – and the Ninth Amendment is void on its face, because** nobody** has a right to say what if any rights it’s talking about. People who claim to be in favor of small government and literalist restrictivism** in constitutional construction need to think through what they’re saying.
Good thing I’m a textualist, then.
I assume I can simply incorporate our previous discussions on this topic by reference, rather than laying them out here again?
Fair enough.
Grounds, sure, but no mechanism.
Actually, I assume just the opposite - I am more of a natural law proponent - that we are “endowed by our Creator with certain Inalienable rights”, and that government exists in large part to secure these rights, deriving their just authority from the consent of the governed.
To me, it makes no difference whether we are creating new rights, or recognized previously existing but un-enumerated rights. Both creation and recognition are powers, reserved to the states or the people.
Probably 90% of our disagreement is right here. To me, it is equally clear that the power of interpretation and rule on Constitutional cases is explicitly granted to the Supreme Court - and that this is different from recognizing/creating new rights. And since the Constitution does not say that the feds can recognize/create new rights…
I don’t understand this part - the states, or the people, have the right to say what, if any, rights it’s talking about. That’s what I am (and the Tenth Amendment is) saying.
But to put it another way, the feds don’t have the right to station a policeman in your bedroom because the Constitution does not give them that right. Remember, my default is always “the federal government can’t do X”, for all values of X that are not referenced in the Constitution.
And it seems to me to be a stretch to claim that disallowing police presence in your shower is an emanation from"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures". Obviously there is room for interpretation in the word “unreasonable”. But I rather doubt that you can conclude that it has no particular meaning at all, and that absent the Ninth Amendment, it means the feds can enter your house at will. There is certainly a gray area in the middle, but the whole area isn’t black.
Regards,
Shodan
No problem, that the discussion seemed to be more concerned with the wording of the Constitution was why I linked it, but surely the crime portion would be of interest to some. Knock yourself out.
Not many arguments on either side of the debate are devoid of bias, as this thread attests to.
I don’t really agree with this. There has been a lot of good academic work done on this question that considerably more objective than Cox’s article. Objectivity is a goal, never a reality, but at least some scholars are trying. I think it is all too common to disregard any standard of integrity just because many people on both sides are biased.
Nope. Not in the least. I’m a firm believer in democracy, though, and I know that would never happen. I don’t need no stickin’ federal government to tell me that my state can’t do it.
OK, for the third time… can someone tell me why this is true when the constitution already had the exact same words in it, and those words were never interpreted that way? And can someone tell me why we needed the 15th and 19th amendments if what you say is true?
Not an American or a lawyer, but to throw in a point concerning the apparent confusion over whether the original framers of the 2nd Amendment meant it to refer to individuals or to a militia - perhaps the confusion is ours. From my understanding of the history of the period, I expect that in the minds of the framers the individual citizens and the militia were one and the same.
I imagine you’re in an extreme minority, assuming you’re in favor of allowing gun ownership (correct me if I’m wrong). Most people on your side of the fence would scream bloody murder if such a thing happened.
Hmmm… not sure what believing in democracy has to do with whether any state would ever pass a gun ban. 
What do you think my side of the fence is?
Well, how would such a ban be enacted if not be a vote from the legislature? That’s democracy. It’s not clear to me that the American people have a better idea of how Californians should live than do Californians themselves.
I still don’t understand the distinction. If the legislature of California mandated attendance at a Southern Baptist church every Sunday morning, I doubt you would be singing the praises of democracy and the respect for the wishes of the people of California.
But the 1st should be incorporated and not the 2nd. It makes no sense, logically or morally.
If these are a list of basic rights which the 14th amendment has imposed upon the states as well, how can we pick and choose? Just because YOU or I would personally feel that a state establishment of religion is bad, but a gun ban may (in your opinion) be good?
There are limits, held up by the courts, on the practice of religion.
Am I missing something?
Just my point. If the first applies to the states, then how can they restrict my 2nd amendment right to keep and bear arms?
I thought you were in favor of people being able to own guns. Am I wrong? I see no reason for you to be cryptic. If that’s not your position, just tell me.
But you said: “I’m a firm believer in democracy, though, and I know that would never happen.” I don’t understand what believing in democracy has to do with your assertion that California would never pass a gun ban." You seem to be saying that if they had the votes in the legislature, then it could pass. I’m not getting how this relates to the assertion that “that will never happen”. I’m not necessarily arguing with you; just trying to understand what your point is.